Two Speeches

Speeches by Obama and Cheney

It’s tempting to see last week’s speech-making duel between Barack Obama and Dick Cheney as a mismatch, with the eloquence of the admired incumbent set against the snarl of the discredited predecessor. Certainly, there was no contest in terms of political stagecraft. Obama appeared in the hushed rotunda of the National Archives, in front of the documents that embody the highest aspirations of American government, while Cheney found a secure location at a right-wing think tank, one of a handful of places in the country where he could be assured a friendly audience.

But the popularity of the messengers should not be confused with the popularity of their messages. Obama’s speech came toward the end of a rough week for one of his signature issues—the return of the rule of law in the war on terror. Obama ran for President on a promise to close the government’s notorious detention facility at Guantánamo Bay, Cuba, and in the first week of his new Administration he directed that it be shuttered and its inmates released or dispersed to other locations by January, 2010. While he was figuring out the details of that process, he suffered a political ambush in the Senate, which voted ninety to six to deny his request for eighty million dollars to shut down the prison, and, furthermore, voted to forbid that any inmates be transferred anywhere within the United States. Even by congressional standards, this was a cynical maneuver, since many of those voting aye had earlier supported the prison’s closure. Where, one wonders, did the legislators think the Guantánamo alumni were going to be sent?

This question has confounded lawmakers ever since the Bush Administration came up with the misbegotten idea to open Guantánamo in early 2002. In a series of landmark cases before the Supreme Court, in 2004, 2006, and 2008, the Justices courageously repudiated the Bush Administration’s attempts to deny basic rights to the Guantánamo prisoners, and, in so doing, gave the new Administration a road map of sorts about how an honorable detention system might be devised. The core of Obama’s speech was an attempt to describe how he would solve a problem that proved well beyond the capabilities—moral as well as legal—of the Bush Administration.

Like the law professor he once was, Obama divided the prisoners into “five distinct categories.” The first, and least controversial, includes detainees who will simply be prosecuted in federal courts for violations of criminal laws. There is not enough admissible evidence to prosecute all two hundred and forty inmates currently in custody in this way, so, for a second group, Obama plans to revive military commissions—pared-down trials that have been used occasionally in the past but that the Bush Administration designed in a way that the Supreme Court found constitutionally defective. For a third group of detainees, Obama pledged to follow the orders of courts that have directed that those detainees be released, and with a fourth group of inmates he has agreed to continue Bush Administration efforts to transfer them to countries willing to accept them.

Finally, as Obama said, “there remains the question of detainees at Guantánamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here—this is the toughest single issue that we will face.” This group, “who cannot be prosecuted for past crimes, in some cases because evidence may be tainted,” might be held in preventive detention, perhaps forever. It’s a sobering thought, that Obama could consider approving this kind of long-term detention, and it remains to be seen how much evidence would be required to justify such an extraordinary step and how many cases it would involve. (To be fair, there were also some military officials and lawyers in the Bush Administration who worked in good faith to find a just way of handling this group.) In any case, it’s hard to imagine any President agreeing to release people who, as Obama put it, “in effect, remain at war with the United States.”

At a minimum, Obama seemed alive to the moral and legal ambiguities implied by the issue. Not so the former Vice-President, who chose to speak in a chilling code, in which methods of torture such as waterboarding became “enhanced interrogation,” in the way that death might be called “enhanced sleep.” Cheney delivered his indictment of the current Administration in the same tone of certainty that he once used to inform the nation of the existence of weapons of mass destruction in Iraq; of the connections between the government of Saddam Hussein and the 9/11 hijackers; and of the prospects for quick victory in Iraq. In light of this, it’s hard to take seriously the claims that Cheney asked us to accept: to name just two, that the information obtained by torture saved lives; and that the abuse of prisoners at Abu Ghraib was solely the work of “a few sadistic prison guards,” and not the result of interrogation practices approved by Cheney himself.

Even worse than Cheney’s distortions was the political agenda behind them. The speech was, as politicians say, a marker—a warning to the new Administration. “Just remember: it is a serious step to begin unravelling some of the very policies that have kept our people safe since 9/11,” Cheney said. “Seven and a half years without a repeat is not a record to be rebuked and scorned, much less criminalized. It is a record to be continued until the danger has passed.” Cheney’s all but explicit message was that the blame for any new attack against American people or interests would be laid not on the terrorists, or on the worldwide climate of anti-Americanism created by the Bush-Cheney Administration, but on Barack Obama. For many months after the 9/11 attacks, Democrats refrained from engaging in the blame game with the Bush Administration. Cheney’s speech makes it clear that, should terrorists strike again, Republicans may not respond in kind.

Cheney’s political acumen is not to be underestimated, notwithstanding his image problems. Last week’s lopsided Senate vote suggests that Republican mastery of the politics of national security (if not of national security itself) remains intact. During the campaign, the majority of voters came to support Obama’s contention that a tradeoff between our values and our security is a false choice. (And John McCain largely agreed.) But the quick flight of most congressional Democrats from their President suggests just how difficult a political assignment Obama has given himself. Cheney, in proclaiming that another attack will prove that his policies were correct, is trying to undermine confidence in the new team in the White House. The President gave a persuasive speech last week, but it proved only that he has a lot more persuading to do. ♦

Jeffrey Toobin has been a staff writer at The New Yorker since 1993 and the senior legal analyst for CNN since 2002.